If
you qualify as a computer programmer specialty worker, you may be eligible
for a temporary specialty worker visa called an "H-1B". This visa
is valid for a period of three years and is renewable for another three
years, for a total of six years. Employment can be part-time, you
may have more than one U.S. employer, and the visa is fully "portable,"
i.e., you may move from one employer to another during the six-year period
of validity. H-1B
specialty worker visa petitions are filed by U.S. employers with Citizenship
and Immigration Services (CIS) of the U.S. Department of Homeland Security
(formerly known as the Immigration and Naturalization Service - INS).
U.S. employers want the temporary services of people whose work requires
a bachelor's or higher degree in a specific occupational specialty. These
fields of skilled knowledge include most computer science jobs as well
as programmers and engineers. The
immigration lawyer's office prepares the necessary forms and other supporting
documentation, including affidavits from the U.S. employer, based upon
information provided to the lawyer by the employer. The
basic information required for an H-1B petition includes the date the U.S.
employer was established and its Internal Revenue Service employer tax
ID number, the total number of its employees, its most recently reported
net and gross annual income, a detailed description of the specialty worker's
proposed job, the specialty worker's salary, and the approximate value
per week of the benefits (i.e., health insurance) the specialty worker
will receive. CIS
sometimes takes six (6) months or more to adjudicate an H-1B visa petition,
so today many employers utilize "15-day premium processing" at a cost of
$1,000.00. Processing delays an woefully inadequate allocation (65,000)
of H-1B visas by Congress are hurting this visa program as well as others
in the United States. Foreign
nationals in the United States who have not worked without authorization
or who have not otherwise violated their current immigration status can
change their visa classification to H-1B in the United States. Foreign
nationals who have violated the terms of their current immigration status
and persons outside the United States must secure their H-1B visa abroad
at a U.S. consulate. Changes
to the law governing H-1B visas -- and they occur frequently -- spell out
new requirements that often take as long as two weeks to satisfy, and which
must precede the filing of an H-1B petition. This includes obtaining
a prevailing wage determination and the filing of a Labor Condition Application
(LCA) with the Department of Labor (DOL) prior to submitting the H-1B petition
to CIS. We prepare and file the employer's LCA. The LCA certifies
that the specialty worker will be paid the higher of two specific wage
levels: the "prevailing wage," which is determined by the local Secure
Workforce Agency (SWA), sometimes in response to the employer's own wage
survey, and the "actual wage," which is determined by comparison to all
other workers in similar jobs at the specialty worker at the employer. The
Immigration Law Center helps employers obtain "prevailing wage" determinations
and documentation. We also provide written instructions for the employer
to use in determining the "actual wage". The SWA's prevailing wage
determination may be challenged by competent, authoritative wage data and
other evidence. The
LCA must be posted in two conspicuous places where the services are to
be performed so that U.S. workers may know that you intend to file an H-1B
petition on behalf of a specialty worker. Penalties, including back pay,
are provided in the event an employer makes a misrepresentation of fact
on an LCA. The
employer must sign an attestation on the LCA stating that it will pay for
the specialty worker's "return transportation abroad" in the event the
specialty worker is terminated before the expiration of his or her visa
status. CIS rules governing this requirement lack an enforcement
provision, and they do not indicate to whom the cost of transportation
must be paid. Although CIS has indicated little interest in enforcing
this provision, it is part of the law. The
employer must keep the LCA and prevailing wage/actual wage documentation
on file. We will provide the employer with those materials and with
instructions regarding their retention. The immigration lawyer prepares
first drafts of all required documents for the employer's review, revision,
and approval. When the employer approves the final documents, the
lawyer files the petition and supporting documentation with CIS and DOL
and will follow-up with those agencies to insure prompt adjudication.
Filing fees continue to rise as Congress tacks more and more fees onto
this visa program. It has become so expensive that many small U.S.
businesses cannot avail themselves of it. There is a fee exemption
for a school, college, or university, or an affiliated organization.
Employers needing fast visa processing usually pay the additional $1,000.00
"premium processing" fee to CIS. Once
an H-1B approval notice is received, most foreign national beneficiaries
of H-1B visas are then authorized to work. H-1B beneficiaries who are overseas
will go to the U.S. consulate to get an H-1B visa stamp in their passport
before they will be allowed to enter the United States in the temporary
visa status and begin work for the U.S. employer. Even those who are eligible
to work without obtaining a visa stamp abroad should get an H-1B visa stamp
in their home country before traveling abroad extensively so they will
be able to re-enter the United States without great difficulty and continue
their employment. The
first step a foreign national should take in pursuing the H-1B visa is
to get an offer of temporary employment from a U.S. employer. We
require prospective clients, whether they are U.S. employers or foreign
nationals, to fill out a simple intake questionnaire for us and submit
it via regular or express mail. A completed intake questionnaire
helps us properly evaluate individual situations and serve our clients
better. There is no charge or fee for submitting a completed questionnaire
to us. We also assist our clients' foreign national employees with
consular processing overseas.

WARNING:
Friends, family, and fellow employees are good sources of bad information
about immigration and nationality law, procedures, and the INS. You should
be aware that U.S. immigration law, federal implementing regulations, and
the federal administrative procedures that one must follow change frequently.
You should consult a qualified immigration lawyer about any new visa application
process. If you do not know a qualified U.S. immigration lawyer,
Mr. Campbell urges you to call the American
Immigration Lawyers Association (AILA) Lawyer Referral Service in Washington,
D.C., toll-free at 1-800-954-0254.

Boyd
F. Campbell is a member of the American Bar Association (ABA), the
American
Immigration Lawyers Association (AILA), and the Alabama State Bar (ASB).
He served as Chair of the Immigration Law Committee of the ABA's General
Practice, Solo & Small Firm Lawyers Section, and was a member of the
ABA's Coordinating Committee on Immigration Law from 1994 to 1998.
He is also a memer of the ABA's International Law Section. Mr. Campbell
served as Chair of the International Law Section
of the Alabama State Bar from 2000 to 2002. He has practiced international,
immigration, and federal employment law in Montgomery, Alabama, since 1988.
Mr. Campbell is listed in The Best Lawyers in America Consumer Guide,
published by Woodward/White, Inc. Access to this database of lawyers
is available on the World Wide Web by subscription: www.bestlawyers.com.
In August, 2001, Mr. Campell was appointed Alabama's first practicing civil
law notary by the Alabama Secretary of State.

Questions or comments about this
article may be directed to:Immigration
Law Center, L.L.C.P.O. Box 11032Montgomery, Alabama 36111-0032
USA